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812 HARVARD LAW REVIEW 



NOVA METHODUS DISCENDAE DOCENDAEQUE 
JURISPRUDENTIAE 

T7VERY century or two, during the past millennium, a new 
-"— ' method in the teaching of Law has appeared, to supplant or 
to modify the hitherto accepted system. The new method may not 
have been, in an absolute sense, an advance. Progress is always 
relative, — relative to the conditions and needs of the time. New 
conditions require changed methods. And so, in the ripeness of 
time, some new method has arisen, to supply an apter tool for newly 
felt needs. 

I 

On the Continent 

About the time when Abelard was revolutionizing the methods 
of Theology at Paris, Irnerius was setting a new ensample foi 
Law at Bologna, somewhere at the end of the i ioo's. 1 

After two centuries, when the possibilities of his method had 
been exhausted, the next universally accepted method was that of 
Bartolus, whose fame gave currency, in the 1300's, to the maxim 
"Nemo bonus jurista nisi Bartolista." 2 

After another two centuries the Humanist doctrine, led by Al- 
ciat, pointed the way again to a new method; the older one had 
outlived its usefulness. This time the congenial soil was France; 
and, under Cujas and others, the "mos Gallicus" came to supplant 
the "mos Italicus." To fulfill its destiny, another two centuries 
were required. 

Meantime legal science was springing up in Germany; and the 
reception of Roman Law there, achieved in the 1500's, offered a 
fresh field for the struggle between the old and the new methods. 

1 There is an impressive modern fresco, idealizing this famous teacher and sym- 
bolizing his work, on the ceiling of the Palazzo del Podesta at Bologna. No portrait 
or sculpture of his features is extant. 

2 Tribute has been paid recently to some of his achievements by my distinguished 
classmate Beale's volume, Bartolus on the Conflict op Laws, transl. 1014; Treatise 
on the Conflict of Laws, 1016, § 26; and the six hundredth anniversary of his birth 
was celebrated in 19 14 by the universities of Italy. 



Nova Methodus Discendae Docendaeque Jurisprudentiae 813 

But other influences in turn were rising, — the contrasted but 
complementary influences of Natural Law and of Nationalism; 
and in the 1600's and the 1700's they became dominant. Broader 
and at the same time more practical features of law were now con- 
ceived as composing legal science in general. New methods were 
needed. 

In 1667, Leibnitz published his essay, "Nova Methodus dis- 
cendae docendaeque Jurisprudentiae." 3 He was but twenty-one 
years old; the vast science of law was thus (in Hallam's phrase) 
"invaded by a boy." i He divided it into four parts or modes, — 
didactic, historic, exegetic, and polemic; and for each part he de- 
scribed the kinds of materials that should be used for study and 
the way of using them. Though his influence on educational method 
apparently did not extend beyond Germany, nevertheless he an- 
ticipated the great movements of the next two centuries, — national 
codification, for example, in the 1 700's, and the historical school in 
the 1800's. His proposed "Novum Corpus Juris," or Justinian 
Rearranged, was first realized a century later in France, by 
Pothier. The polemic moots which he recommended are perhaps 
the precursors of von Ihering's practical exercises, introduced only 
in the last generation. His projected "Theatrum Legale" was an 
anticipation of the processes of Comparative Law which have 
come to pass only in the days of Maine, Kohler, and Dareste; 5 
and, curiously enough, the Socratic method, as applied in the Har- 
vard Law School under Ames and Keener, is foreshadowed in his 
preface. 6 

II 

In England 

In philosophic stimulus Leibnitz owed much to Bacon's "Novum 
Organum." Insular England had meanwhile been developing its 
own system of legal education, — the Inns of Court, with their 

3 4 Opera Omnia, ed. Dutens (Geneva, 1768), 159. I desire to acknowledge the 
courtesy of the Librarian of Harvard University in lending me this volume. 

4 Moreover, the added marvel is (as Wolf tells us) that he composed it "in itinere. 
omni librorum apparatu destitutus." 

6 "Ex his aliisque omnibus [gentium moribus] undecunque collectis, Deo dante, 
conficiemus aliquando theatrum legale, et in omnibus materiis omnium gentium, loco- 
rum, temporum placita wapaWr/Xois disponemus " (§ 29). 

• "Judicium enim, etsi ante annos non veniat, potest tamen et in pueritia interro- 
gando excitari; hoc enim voluit Platonis reminiscentia, exhibitumque specimen in 



814 HARVARD LAW REVIEW 

Moots. Here, as in everything, the British change was slower, and 
less radical when it came. 

At a very early period the Inns of Court were, in effect, or- 
ganizations clustering around the professors of the common law 
at London, maintaining its teaching and practice. 7 But, by the 
end of the 1500's they had lost this character, and up to the 
first half of the 1800's systematic legal education in England was 
stagnant. What was given at the universities does not seem to 
have had any value placed upon it. Lord Brougham once said, 8 
"I won't say it's a humbug; but it's something very like it. When 
I was attending lectures on the civil law in Edinburgh, they were 
all in Latin. A set of Latin questions were proposed after the lec- 
ture to the students. Very difficult, indeed, some of them might 
be to answer, if a proper answer were required; but all we had to 
do was, if the question commenced with 'Nonne,' we said 'Etiam'; 
and if with 'An,' we replied, 'Non.'" The office of a practising 
lawyer was the only place in which the law could be learned, if at 
all. The eminent authority just mentioned thus sketched the 
process of legal apprenticeship in his day: "It is a most melancholy 
state of things. There is nothing like education for law students 
now. When I was in the chambers of Mr. (afterwards Chief- Jus- 
tice) Tindal, we seldom or never saw our master; we were told, 
' Copy whatever you can lay hold of,' and with that injunction we 
were left to ourselves." 9 Professor Dicey added his testimony 
concerning the state of affairs even in the '70's: "He is put to make 
bricks without straw, or rather without having even been taught 
how bricks are to be made. The oddity of the thing is that he, 
after all, gets in due time, mainly by the process of imitation, to 
make pretty tolerable bricks." 10 

Towards the middle of the 1800's an effort began to devise some- 

Menone, ubi puerum Socrates a primis sensuque manifestis, nihil docens, interrogando 
tantum ad ea deducit quae vel subtilissimo cuique negotium f acessant : incommensura- 
bilitatem scilicet diagonii et lateris in quadrato." 

7 Fortescue, De Laudibus, c. 48-9; i Gneist, English Constitution, 393; 
Foss, Judges of England, II, 201, IV, 249; Report op House of Commons Com- 
mittee on Legal Education, 1846, 6; 1 Blackstone, Commentaries, 23. 

8 12 Law Review, 114. 

9 "I myself read no treatises. . . . I learned law by reading the reports and attend- 
ing the courts," said Chief Baron Pollock to his grandson, now Sir Frederick Pollock, 
Bart. (First Book of Jurisprudence, 3 ed., 313.) 

10 25 Macmillan's Mag., 127, 209. 



Nova Methodus Discendae Docendaeque Jurisprudentiae 815 

thing more helpful and better suited to the professional dignity 
of law. The matter was taken up by the Society for the Amend- 
ment of the Law and was vigorously discussed. A committee of 
inquiry of the House of Commons was appointed in 1846 to report 
on the state of legal education; and a commission, including Vice- 
Chancellor Wood and Sir John Coleridge, was appointed in 1855 
to report on the Inns of Court. Both these bodies recommended 
the establishment of a University of Law, under the control of the 
Inns. But the outcome seems to have been not much more than a 
zealous increase of the number of lectures by the Readers of the 
Inns. The old system was revivified, not materially altered. Ap- 
parently it was a case of "muddling through." 

In 1871 (when Mr. Langdell's incumbency in the Harvard Law 
School had but just begun) Mr. Bryce and Mr. Dicey came to the 
United States and visited several law schools. The Columbia Law 
School received from them the most favorable comment; u at the 
head of it was then Theodore Dwight, a man of great personal 
magnetism and didactic skill. The idea of a University of Law 
was now again mooted by the Society for Legal Education, having 
at its head Lord Selborne, who carried through in 1873 th e measure 
reforming the judiciary system. The principal material result 
seems to have been that the Readers of the Inns were replaced by 
Professors and Tutors, the number being increased. Among these 
were included, in 1873, sucn scholars as Amos, Broom, and Hunter, 
and, in 1886, Pollock, Bryce, and Harrison. But within the next 
fifteen or twenty years an extension of the number and scope of 
the subjects required for the law degree at the larger universities 
showed the wide workings of this spirit of improvement; and in 
1883 appeared Mr. Dicey's plea for the teaching of English law at 
the universities. 

Early in 1885 Mr. Finch visited the Harvard Law School; I 
remember that we students felt proud of the reason for his pres- 
ence. On his return to Cambridge, England, his lectures then in- 
troduced what the Law Quarterly Review was willing to term 
"the method of Professor Langdell." In the fall of 1885 came Sir 
Frederick Pollock, and visited the Harvard Law School; and the 
impression produced on his mind by its method of instruction was 
an important influence (as he tells us in the preface to his "Treatise 
11 See 25 Macmillan's Mac, 127, 209. 



816 HARVARD LAW REVIEW 

on Torts,") not only in his teaching but in his writing also. Mr. 
Finch later published a " Selection of Cases on the English Law of 
Contract, Part I," and an inaugural address on "Legal Educa- 
tion, its Aim and Method." 

The important features of this fourth stage of legal education in 
England were: (a) the radical change in the source of instruction, 
— for it now began to be given at universities by scholars holding 
university professorships, instead of in London by barristers under 
the auspices of the Inns of Court; (b) the adoption of the Langdell 
method by Mr. Finch. 12 

Ill 

In America 

Meantime, a century before, America had already made its first 
contribution to Anglo-American method, — the law school. At 
Litchfield in 1782 (the old schoolhouse is still standing; you can 
buy a picture-card of its dilapidated modesty) the example was set 
by Reeve, and then by Gould. Harvard University now cele- 
brates the hundredth anniversary of its own school, the oldest sur- 
viving one. There were other schools, which passed away, though 
notable in their day and region, — for example, those of Nicholas, 
Pirtle, and Robertson at Lexington, Kentucky (afterwards Tran- 
sylvania University). But the didactic type was the same — set 
lecture and memorized treatise, or both, — though Smith's "Lead- 
ing Cases" had long hinted at other possibilities. 

Then came Christopher Columbus Langdell, with the insight of 
genius into the spirit and needs of Anglo-American legal sources. 

IV 
The Langdell Method as a World Method 
It has always seemed to me that LangdelFs method was an un- 
conscious product of the scientific spirit of realism — that realism 
which was then just beginning to obtain the dominance now uni- 
versal, — the scientific realism of Darwin, Comte, and Spencer, 
which has gradually spread into Art, Religion, and Industry. Of 
this aspect of his method, he himself may or may not have been 

u The foregoing page or so has been lifted without quotation marks (but with slight 
revision) from an editorial note in the first volume (1887) of this Review, 297. But 
to deflect the sleuth of plagiarists, let me confess that the anonymous author was my- 
self. At the time I felt rather pleased with this editorial debut. 



Nova Methodus Discendae Docendaeque Jurisprudentiae 817 

conscious; but it was conceived in the spirit of looking at the ulti- 
mate facts as they are and of treating them inductively. 

But I think that he must indeed have been conscious of the rela- 
tion of his ideas to the modern movement of Science; for his formal 
exposition of principles, delivered at the Two Hundred and Fiftieth 
Anniversary Celebration, in 1886, begins with the mighty sentence: 
"Law is a Science!" 

I was present, as a student, on that occasion; and often, in the 
ten years thereafter, when arrayed in the ranks of militant disciples 
of his method, I recalled that deliverance. To me it has the sono- 
rous ring of a new gospel, the utterance of a prophet and a seer. 
In its rhetoric, as in its philosophic significance, it is, for us lawyers, 
what John's utterance ("not to speak it profanely") was to the 
theologians: "God is a Spirit, and they that worship him must 
worship him in spirit and in truth." 

And it was a daring thing to say, in those days. His hearers be- 
lieved in him; but I doubt if many of them believed in his utter- 
ance, or even grasped its full truth. The profession (let us acknowl- 
edge it) does not yet believe. For some years past, I have ventured 
to try the phrase "legal science" in this or that professional con- 
nection; and ever I find but a philistine reception for it. Outside 
of our profession, there is even less readiness to concede such a 
status to Law. Recently, before a Science Club, composed chiefly 
of professors in the natural sciences, I delivered, by request, an 
address on the topic, "Law as a Science, and its Methods Compared 
with those of Other Sciences." It was evident (at the outset, cer- 
tainly) that any exponent of such a theme must yet expect to be on 
the defensive in claiming a genuine place for Law as a science. 

Langdell's great truth, so boldly affirmed now thirty years ago, 
has another generation to run before it becomes a truism in Anglo- 
America. 

His method, however, — the method founded on that truth, — 
has already been accorded universal acceptance. And if, beyond 
its native soil of America, it has received as yet only theoretical 
approval, in England and other countries of Anglo-American law, 
that is only because of temperamental obstacles to the free Socratic 
style of discussion which incidentally has gone with it, 13 and be- 

13 Mr. Dicey pointed this out thirty years ago (2 L. Quart. Rev. 88); and contem- 
porary witnesses report little change today. 



818 HARVARD LAW REVIEW 

cause of the naturally slow spread of a truth beyond national bor- 
ders in an applied science. 

But its career is not to be bounded by the realms of Anglo-Ameri- 
can law. In its emphasis on the inductive process in legal pedagogy, 
it has yet a solid service to perform in Continental law. Some of us 
are fond enough to believe that it will still play its part in all of 
Western Europe, — the countries now fettered in method by their 
codes and by other traditions. The exclusively dogmatic method 
has inherent shortcomings. There is both room and need, in their 
system of education, for inductive training. The Langdell system 
would supply that need. Therefore I believe that it will be adopted 
and adapted, in due course of destiny. 

Signs have appeared there, for some time, of a readiness to ap- 
preciate this. In the history of Law, some have long ago begun to 
use it, in such works as Girard's "Textes du droit romain" and 
Lorsch and Schroder's "Urkunden zur Geschichte des deutschen 
Privatrechts." They use it in practice manuals. And they are ripe 
to use it in the substantive law. What they now need is merely 
some demonstration of its possibilities in a class-room. Whether 
that will come about through the missionary work of some Euro- 
pean students who have learned the method here, or through the ex- 
ample of some future American exchange professors, remains to be 
seen. But one may have faith that the need will be some day duly 
supplied, and that the Langdell method will complete the circuit of 
that world-influence which it merits. 

This would be no more than the repetition of history. For all 
the great changes of method have spread only slowly from the coun- 
try of origin to other countries. The "mos Italicus" took its time 
in reaching France; the "mos Gallicus" found acceptance only later 
in Germany and Holland; and Savigny's historical method had to 
wait before it commanded universal adherence in other countries. 

V 

Has the Time Arrived for a Newer Method? 

In the country of its origin, time enough has not elapsed for the 
need of a new system to develop. The other great methods ran their 
race for two centuries or more. But has not time enough elapsed 
at least for the development of new applications of it? 



Nova Metkodus Discendae Docendaeque Jurisprudentiae 819 

We must remember two things, in this matter of time. 

(1) One is that the Langdell method was belated. It came nearly 
a hundred years — perhaps more — behind its time. English law 
had long been based chiefly on judicial judgments. For nearly 
three centuries the reports of cases had been fairly ample. But 
since the very early 1800's (when Campbell began his Nisi Prius 
reporting) they had been copious. The method might have been 
aptly used at any time since (say) 1820, at least. Of course, there 
was reason enough for the delay. But, so far as concerns its aptness, 
a method which assumed that the main and ample sources of law 
for scientific study were printed reports of judgments would have 
been fully practicable at that date. The facts of law, in short, 
which the method fitted, were already facts a century ago. 

(2) The second thing is that during that century legal conditions 
in America have ceased to be static. Of course, they are never 
absolutely static. But the movements of law are apt to be like 
those of a large river. It may flow on a broad level bed for many 
miles; the conditions of its movement are the same, in that stretch. 
But then the level of the country subsides abruptly; a defile is 
reached; and the smooth stream breaks into a swift torrent of 
tumultuous rocky rapids; until finally the volume of water demand- 
ing exit arrives at rest once more on the lower level in open country. 
Theoretically a river may descend peacefully (like the Amazon) 
through its entire length, from mountain to ocean. Practically, 
most rivers have these occasional sudden stretches of rapid change 
to the next level. So with Law. But, not to press the analogy too 
far, the period from 1800 to 1900, in American law, has been on the 
whole a period of gradual placid progress, through judicial logic and 
occasional legislative amendment. The present years, however, 
see us entering on a period of more or less radical change. 

Moreover, social change in these days being more conscious than 
ever before, legal change is likely to be more rapid. The speed of 
evolution of humanity has increased enormously in ratio with the 
lapse of time. Paleontologists tell us, for example, that during the 
Third Interglacial and the Fourth Glacial periods of the world 
(represented by the Piltdown and the Neanderthal races of men) 
the time that elapsed was some 125,000 years; but that the entire 
human progress in the arts of life, made in that immense period, 
was represented only by improved methods of chipping the surface 



820 HARVARD LAW REVIEW 

of flints for the making of tools. The enormous increases, in the 
last twenty-five years, of modes of communication have resulted 
in almost corresponding growth in capacity for exchange, and there- 
fore change, of social ideas. Hence, a change of "conditions which 
might have required a century of time in the 1400's, or even the 
1600's, would not now be an anomaly in a quarter of a century. 

For these reasons it would not be anomalous to find that a method 
of legal education, invented half a century ago, and even then half 
a century belated, might now already be mature for readaptation to 
new conditions. 

What is there, then, in the method which could be supposed not 
to fit present conditions? It seems to me that one can put a finger 
on the precise place. That place is what may be called the minor 
premise of the Langdell syllogism. "First, Law is a Science," was 
the major syllogism; and no one can be hardy enough to question 
this. But "Secondly," he announced, "all the available materials 
of that science are contained in printed books," 14 i. e. in reports of 
cases. He did not say "reports of cases," but the spirit and the 
practice of his method were strictly thus limited. 15 

It is here that the doubt arises. Can we today concede that the 
reported judicial judgments are the sole sources for the science of 
Law? And if they are not, if there are other important sources, 
must not a sound method of legal education make regular use of 
them also? And, if so, what shall be those uses? 

VI 

The Six-Process Method 

At this point let me preferably shift the order of thought, and 
make my proposals after setting forth my own notions of the fun- 
damental processes of Law. 

My thesis will be this: Law, as a subject of thought and activity, 

14 Harvard Law School Association, Report of the Organization and First 
General Meeting (Boston, 1887), 40. 

16 On this occasion the speeches all showed that such was the understood implica- 
tion. Mr. Carter, e. g., referred to "the great and principal cases in which are the real 
sources of the law" (p. 26). And such was the usage of the School at that time. It 
was, for instance, not thought necessary in 1887 for the Library to possess a complete 
set of the statutes of the several states. The main object was to get behind the treatises 
to the cases. 



Nova Melhodus Discendae Docendaeque Jurisprudentiae 821 

has several distinct categories or modes of being, and cannot be 
thought about except in one or another of these processes; hence, 
any curriculum of legal education must be based on these distinc- 
tions, by aiming to develop each process adequately. 16 

In a former number of this Review 17 1 was permitted to set forth 
a classification of Law into four branches, only two of which are 
here material. Law was classified according to the different activi- 
ties of thought which deal with the fact of Law. Law, in the first 
place, may be conceived of as a thing to be ascertained; i. e. as a 
mere fact of human conduct; and Law, in the second place, may be 
conceived of as a thing to be questioned and debated, i. e. as a rule 
which by some standard ought to be different from what it is. The 
uncouth names given, for short, to these two general branches of 
legal science were Nomoscopy and Nomosophy; but the names are 
immaterial. 

Now \he first general branch has three subdivisions: (a) We may 
concern ourselves with ascertaining the actual rule of law of a given 
moment in a given country, by studying the sources in which that 
law is expressed; call this, Nomostatics. (b) We may concern our- 
selves with ascertaining the former condition, history, and develop- 
ment of a rule of law; call this, Nomogenetics. (c) We may concern 
ourselves with ascertaining the relation between Law and other facts 
and their sciences; call this, Nomophysics. 

The second general branch above has two subdivisions: (1) We 
may take a standard of logic, analyze the rules of law, and examine 
their consistency as a system or part of a system; call this, Nomo- 
critics. (2) We may take a standard of ethics, economics, or politics, 
and examine the rules of law with reference to their conformity to 
that standard; call this, Nomothetics or Nomopolitics. 

But there is also a third general branch (not taken up in the 
above-cited article). We may take the Law of a given community, 
or one or more rules of it, and compare it with the law of another 
community, with reference to one or all of the above features, i. e. 
Comparative Law, or Supra-national Law. 

What is the significance of these distinctions for legal education? 

16 My conclusions will coincide in some respects with those of Professor Redlich, in 
his recent report to the Carnegie Foundation, but are reached by a different path. 

17 28 Harv. L. Rev. i (November, 1914); also in the writer's Cases on Torts, vol. 
II, Appendix A. 



822 HARVARD LAW REVIEW 

The significance of them is this: All of the above ways of thinking 
about Law are inherent and unavoidable, and are used in a lawyer's 
practical activity. Some are used always more than others, and 
some are used at certain periods of a nation's history more than 
others. But all are used, and all are necessary and inevitable. 
Hence, legal education should endeavor to train the student in the 
use of all of them, and not merely in one or two of them. 

For educational purposes, then, how do they group themselves 
practically? That is, how far are they so distinct, in the mental 
processes involved, that practically they require separate attention 
in educational method? 

Here, of course, experience as a student and a teacher comes into 
play. Speaking from such experience, I am convinced that there 
are substantially six distinct mental processes, which need separate 
attention and cultivation. 

Without adhering formally, therefore, to the above artificial 
nomenclature, let me .briefly set forth these six kinds of mental 
process which need to be cultivated in the embryo lawyer. 

i. Analytic process. The first is the process of analyzing the judi- 
cial decisions, to determine the Law as it is, by tracing the logical 
implications of general principles as revealed in specific cases. 

This process is what the case-study method provides for the 
student. And it is the only process (of the six) that it provides. 
Whether we are searching for the rule of mutual consent in contracts, 
or for the rule of liability of individual partners to firm creditors, or 
the rule of privilege for interested persons in defamation, or for any 
other actual rule of law, the process is always one of dissection or 
analysis, in logical detail. 

This is indeed the process most used by practitioners in their 
ascertainment of the existing Law (Nomostatics) . And in the past 
and present phase of our legal sources it is the most usually needed 
process. Therefore it calls for thorough mastery. And the great 
service of Langdell's method was and is that it supplies that mas- 
tery. But that process is not the only process of thought used and 
needed by the lawyer or the legal scholar. And in the coming state 
of our legal sources it will occupy, as a process, a place of less rela- 
tive importance than hitherto (though still a larger place presum- 
ably than any one of the others). This was the shortcoming of the 
case-study method, — a shortcoming which in changed conditions 
may be termed serious. 



Nova Methodus Discendae Docendaeque Jurisprudence 823 

2. Historic process. The second process of thought about Law is 
the thought of it as changing, moving, developing, from a past 
through a present into a future, — the historic process. This mode 
of thought becomes specially important to a lawyer in an epoch when 
his national law is in a period of rapid change, — that is, change 
maturing in his own lifetime. To any student it is an important 
intellectual stage when he first realizes that all law is in a state of 
constant motion, like a kaleidoscope. I do not remember just when 
this realization came to me; I know it was not while in the Law 
School; but as I look back, I note a great difference in all my no- 
tions about law since the time of that realization. I am convinced 
that the acquisition of it should be made at the stage of one's formal 
legal education. 

Many have fondly believed that this can be done and is done by 
the case-study system. I doubt it. Something indeed can be done; 
but not enough. There are several reasons for this; to elaborate 
them would require too much space. But a most important one is 
that historic change of rule is the result always of causes, — causes 
more or less discernible but external; and the judicial opinions do 
not contain sufficient data of those causes. Who, for instance, could 
attempt to understand the causes that influenced the rule against 
general warrants, by merely reading Camden's eloquent opinions? 

The historic sense is a necessary sense for the lawyer; and the 
case-study method does not supply data for its genuine cultivation. 

3. Legislative process. A third process of thought about Law is the 
thought of it as something to be created, made by ourselves, and 
made to be perhaps different from what it now is, — in short, the 
legislative process. And, in a period of changing law, this too be- 
comes an important process for the lawyer, — the most important 
in a civic sense. 

Now the habitual analysis of judicial judgments does not in the 
least cultivate the acquisition of this process. The two are fairly 
alien to each other. One of the notable reasons for our American 
lack of legislative skill is that our judiciary committees of the leg- 
islature, who frame the statutes, are composed of men whose only 
training (hitherto) has been in the analysis of case-judgments. 
The really basic principles and problems that attend the legislative 
process have scarcely been dreamed of by our most competent prac- 
titioners. Any one who hesitates to accept so strong a statement 



824 HARVARD LAW REVIEW 

may be convinced by glancing at the current volume ("The Science 
of Legal Method") in the Modern Philosophy Series; or at the 
recent volume of Professor Ernst Freund of the University of 
Chicago, on "Standards of American Legislation." 

The legislative process of thought about Law is necessary for the 
lawyer; and the case-study method does not cultivate it at all. 

4. Synthetic process. A fourth process of thought about Law is 
the process of building up individual rules and principles into a con- 
sistent system — of being able to trace every rule backwards and 
upwards to its more and more general expressions and of har- 
monizing these, — in short, the synthetic process. 

This process is needed and has always been used to some extent 
by lawyers. It characterizes the greatest of them in their argu- 
ments, and it ordinarily comes only at their maturest period. It 
represents their highest capacity. In a period of changing law it 
underlies the skill that- is necessary in order to fit the new law well 
into the old, — like the skill of an architect restoring an old but 
solid building, who knows which beams, pillars, and girders are in- 
dispensable, and which ones can be removed without scruple. 

The case-study method is capable, perhaps, of furnishing some 
of the material for this process. But it has ordinarily not been so 
used; in its ordinary use its service is purely or mainly analytic and 
not synthetic. The treatises on Analytic (thus miscalled) Juris- 
prudence purport to render the service; they represent synthesis. 
But their vogue has not been favored under the case-study system. 
The synthetic process of thought is often dismissed (as in a recent 
official utterance) with the epithet of "speculative jurisprudence." 
But its time must come, if our law is ever to be soundly recon- 
structed; and legal education must provide for this in its methods. 

5. Comparative process. The fifth process of thought about Law 
is the process of looking outside our own actual law ("the" law), 
of conceiving a non-Ego in law, of realizing that other communities 
live and move under other legal systems, and that these must be 
reckoned with in the life of our own law among nations' laws, — 
in short, the comparative process. This consciousness of "a some- 
thing not ourselves that makes for Law" (to paraphrase Matthew 
Arnold's phrase) — a sort of legal altruism, or anti-local spirit, — 
is an important one to acquire, especially in a period like the pres- 
ent. International relations are becoming more and more active 



Nova Methodus Discendae Docendaeque Jurisprudentiae 825 

in daily commerce; and national insularization of law can no longer 
be reckoned upon. 

Fortunately, our own federal form of national life has already 
tended strongly to cultivate in us this sense of law. The free com- 
parison of common-law precedents from all the states has inevi- 
tably done this, even under the case-study method. Yet there 
remains the need of extending it to non-Anglo-American legal 
systems, and to the systems of law in other epochs. 

The case-study materials, as hitherto provided, do not supply 
this need. Much remains to be done for cultivating the sense of 
national law as merely a member in the family of laws, — a family 
in which we must be prepared to seek harmonious adjustment and 
mutual profitable imitation. 

6. Operative process. The sixth process of thought about Law 
conceives of law as being a nominal rule (as declared by courts and 
legislatures) which may in fact, however, not be enforced and prac- 
ticed; it seeks constantly to keep aware of the gap, if any, between 
the nominal rule and the actual custom; it may be called the opera- 
tive process. This is Professor Ehrlich's "living law." 18 

This is, in one sense, the "practical" side of law ("pragmatic" 
would more nearly describe it). It is often supposed to be taken 
care of by the so-called Practice courses; but that belief is an error. 
Those courses deal mainly with judicial procedure. The present 
process involves the substantive law. It concerns "practice," in 
that the attorney's intelligent advice to his client requires an ac- 
quaintance with actual commercial customs, and that this knowl- 
edge comes usually through practice only. In reality, this process 
concerns a specific and distinct conception of the Law, which is 
just as real and interesting for the scientific scholar as for the prac- 
titioner; and thus it ranks as a separate object of legal study, dis- 
tinct from procedural skill and tact. 

The case-study method does something for this object — per- 
haps a good deal — certainly very much more than in the code 
countries with which Professor Ehrlich is familiar and in which he 
saw the special need of study in this part of the field. For the case- 
reports contain copious data of actual commercial customs and of 
documents set forth verbatim. Again and again they exhibit edify- 

18 Set forth in his paper read at the 1915 meeting of the Association of American 
Law Schools. 



826 HARVARD LAW REVIEW 

ingly this contrast of light and shadow (so to speak), of law and 
custom. But what they do thus exhibit is only casual and scanty, 
in comparison with what could be and ought to be done. What 
ought to be done is, in every course, to provide a systematic appa- 
ratus of documents taken from today's customs of trade and in- 
dustry, and to make occasional excursions of inquiry into statistics 
and other classes of facts. Thus only can this process of thought 
be adequately cultivated. 19 

Such are the six processes, or senses of Law, which legal education 
must be adapted to cultivate. How far does our present curriculum 
provide for them? 

VII 

A Reconstructed Curriculum 

Taking the curriculum of the school with which I am most famil- 
iar, let us see how its courses of today distribute themselves with 
reference to their service in developing mainly one or another of 
the above six processes. They may be classified, roughly, as follows: 

i. Analytic process: Contracts; Torts; Real Property; Common 
Law Procedure; Damages; Personal Property; Evidence; Quasi- 
Contracts; Agency; Commercial Paper; Crimes; Equity; Prop- 
erty II; Persons; Judgments, etc.; Public Officers; Carriers; 
Trusts; Insurance; Public Utilities; Equity Pleading; Bankruptcy; 
Suretyship; Constitutional Law; Property III; Criminal Pro- 
cedure; Irrigation; Mining; Code Pleading; Mortgages; Munici- 
pal Corporations; Partnership; Federal Jurisdiction; — 33 courses, 
representing 84 semester hours. 

2. Historic process: Legal Biography and History; Roman Law; 
Evolution of Law; — 3 courses, representing 6 semester hours. 

3. Legislative process: Contemporary Legislation; Applied Crim- 
inology; Statute Law; — 3 courses, representing 4 semester hours. 

4. Synthetic process: General Jurisprudence; Philosophy of Law; 
— 2 courses, representing 5 semester hours. 

5. Comparative process: International Law; Roman Law; Con- 
flict of Laws; Evolution of Law; — 4 courses, representing 13 
semester hours. 

6. Operative process: Conveyancing is virtually the only course 
directly aiming at this object. (But in any adequate method the 

19 At some more opportune time I should like to expound a method by which the 
practical obstacles to securing such an apparatus can be overcome. 



Nova Methodus Discendae Docendaeque Jurisprudentiae 827 

process would form a fractional part in almost every course under 
1 above; so that it cannot easily be compared in semester hours 
with the others.) 

This survey shows that out of a total of some 112 semester units 
offered, 20 nearly five-sixths serve mainly or wholly the first above- 
named process, the analytic; while all the other five processes to- 
gether are served (except incidentally, as noted under 2, 5 and 6) 
by only a little more than one-sixth of the units. Moreover, in the 
actual result this disproportion is increased; for since only 70 semes- 
ter units are required to be achieved, and since in these 70 a mini- 
mum of 5 units only is required to be selected outside of the first 
group, the mass of students (following the orthodox lines) may and 
do content themselves with little more than that minimum (5 to 10 
units) in making the selection. So that, in fact, more than six- 
sevenths of the education is spent in exercising the analytic process. 

The question is, then, Is that enough? I am convinced that it is 
not. Even after all concessions made (i. e., that the analytic process 
is the most common one for the practitioner, that it requires for its 
mastery long-continued and widely varied drill, etc., etc.), its share 
remains disproportionately large. That its mastery really needs, 
week after week for three years, in twenty-five or thirty different 
subjects, the repetition of that identical process of case-analysis, I 
have for some time ceased to believe. The same benefit could be 
obtained with less quantity of identical mental effort. 

Moreover, the prestige given thus to the analytic process tends 
to repress in the student body an appreciation of the equal need of 
the other processes. The need for them is equal (though the quan- 
tity of exercise required may not be as much). But the orthodoxy 
of the first has thus far kept the others in the rank of heterodoxies. 
They should be given an equality of emphasis. 

My proposal is, therefore, that the curriculum be re-grouped 
with reference to the above six distinct processes; that a better 
proportion be sought in distributing the pedagogic attention to 
them; that more suitable materials be devised for cultivating the 
five now heterodox processes; and that the required subjects be so 
enlarged that every student is certain to have had a fair elemen- 
tary training in all of the processes. 

20 The purely "Practice" courses have been omitted in the above grouping. 



828 HARVARD LAW REVIEW 

And now, in view of the skepticism which will doubtless greet 
this novel division into "processes," I venture, in its defense, to 
invoke analogy. No doubt (as the revered Professor Hill used to 
inculcate unsparingly) analogy is not argument. Nevertheless, it 
is often helpful and plausible. And I see a plausible analogy in 
physical training. 

There are four processes or stages in physical training, (i) First 
come the individual muscles. We have at our disposal a score of 
different "chest-weight" exercises; each of them will reach a spe- 
cific set of muscles. Suppose that we have carefully developed each 
one to a degree. (2) But we are yet unskilled in their coordination. 
Here the parallel bars, the horizontal bars, the rings, and other 
apparatus train us to use several sets of muscles at once, each play- 
ing a part and adjusting itself at the right moment to the others, to 
attain a total result. But thus far we are using muscles only. (3) 
The other bodily functions (lungs, stomach, etc.) remain to be 
drilled and coordinated with the muscles; endurance and economy 
of effort must be cultivated. Sparring, wrestling, fencing, track 
athletics, do this. They represent a stage beyond the former two. 
(4) But as yet the task is individual only. It must now become 
social. The whole skill of each Ego must merely contribute as a 
subordinate part of a larger whole. Team athletics supply this, — 
baseball, football, and the rest. 

Here, then, are four distinct processes in athletic activity. No 
complete athlete can lack any of the four. Sound training must 
include specific and systematic attention to all four. A man who 
went no further than specializing in chest-weights would be athleti- 
cally imperfect. And the most skilled team-player must possess a 
general foundation in individual muscle-development. 

What I now point out, therefore, in legal education, is that, if 
these distinct processes be recognized to exist, each must be con- 
sciously cultivated by methods specifically adapted to that purpose. 

VIII 

Conclusion 
To sum up: I invite assent to the following theses: 
That Law is dealt with, in nature and in thought, by six distinct 
mental activities or processes, — the analytic, the historic, the 
legislative, the synthetic, the comparative, the operative; 



Nova Methodus Discendae Docendaeque Jurisprudentiae 829 

That these six processes have greater or less importance at differ- 
ent epochs of a community's legal life; and that in our present 
epoch the second, third, fourth, and fifth have a relative importance 
which they have not had for a century past; 

That the case-study method, as hitherto practiced, develops 
mainly the first only; and yet that method represents five-sixths or 
more of the student's activity under the ordinary curriculum of 
today; and that this is disproportionate; 

That therefore greater relative place should be given to the others 
(relegating the analytic process to, say, one half of the course) ; and 
that more suitable methods and materials should be provided for 
their adequate cultivation. 

John H. Wigmore. 
Northwestern University Law School.